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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply... (More)

About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply. My long, strange career trip has included law and management jobs in two Fortune 50 companies, before founding the legal search and staffing firm Cushing Group, Recruiters. I've lectured on negotiation and settlement strategy, and teach graduate courses at Golden Gate University (Adjunct of the Year for a doctoral seminar on business, law and society). Illinois, Texas and California (Inactive) admitted me to law practice; I hold JD and MBA degrees from the University of Illinois, and a BGS from the University of Michigan, with Distinction. There -- Go Blue! Personally, my daughters are a lawyer in NY, and a pre-med student in NM - their lives-and-times often animate these columns. I'm active in animal advocacy matters, having led a citizen team that took Alameda's city animal shelter to a non-profit operation - we saved $600K annually and the lives of some 700 companion animals/year vs. the City's best alternative. I'm delighted with that success. My family has re-homed 144 foster animals over many years; we host four boisterous border collies of our own. Mostly for humane movement efforts, I was nominated for GQ magazine's 2009 Better Men, Better World Award. You may notice that many of my rants relate to critter issues. In addition to the Raucous Caucus blog, I frequently contribute to The BARK magazine, and am a proud Moderator emeritus on the popular news and humor website www.Fark.com. I prefer scotch over imported beer (Hide)

Love in the Time of Culture War, Part 2: Hobby Lobby

Uploaded: Mar 3, 2014

Part 1 Synopsis: AZ's ill-starred SB1062 and the upcoming Sebelius v. Hobby Lobby case before the US Supreme Court have much in common. Both are based on variants of the Religious Freedom Restoration Act (RFRA), and seek to promote exceptions from generally applicable laws based on religious conviction. Regardless whether Gov. Brewer's state veto was based on economic pressure or her dawning recognition that, in AZ's pre-enlightenment legal system, the bill was redundant, the Hobby Lobby case could have a much broader impact. Part 2 unpacks the issues and a few possible implications of 'Hobby Lobby.'

Hobby Lobby is a closely-held, for-profit corporation that operates 500 retail outlets, with 22,000 employees. Its founders object to the ObamaCare provision that all employer-sponsored health care plans must include free contraceptive and so-called 'morning-after' coverage. Specifically, it's the "abortifacient" drugs element (you will hear that word a lot this month, since it sounds vaguely sinister and easy to dislike, at least as compared to "pills" and "condoms"). Their objection is based on their sincere religious belief that life begins at conception. Thus, even a morning-after corrective is sinful in their belief system.

Accordingly, the RFRA looms large.

The RFRA is a 1993 federal statute that requires the federal government to demonstrate a "compelling state interest" in any action or requirement that interferes with a person's religion. Further, the feds must show that they have chosen the least interfering means of accomplishing whatever that very important goal may be. Here, the ObamaCare requirement is at-issue as impinging on Hobby Lobby's religion. At least two threshold issues have to be addressed before reaching the RFRA.

First, RFRA applies to all actions taken by the feds, but it is simply a statute. What happens when another, later federal law conflicts with it? They stand on equal footing, after all  neither is constitutional in nature, and both have been upheld as being consistent with the Constitution's guarantees. It can be argued that the later-in-time law reflects the more current sense of Congress, and ought to prevail in case of a tie. The more traditional argument, however, is that if a later law intends to repeal an earlier one, it must say so. ObamaCare did not so state, and indeed, it looks like it was partly crafted in recognition of the RFRA's terms. The Hobbyists probably win this one.

Second, and more important, RFRA applies to "persons," and not explicitly to businesses or corporations. In order for RFRA to apply to Hobby Lobby, then, the term "persons" must be read to include for-profit corporations. We've seen this show before recently, in terms of the extension of certain free speech guarantees to companies making campaign contributions, in the abysmal, anti-democratic "Citizens United" decision (contrary comment from 'spcwt' hereby pandered). But the freedoms of speech and religion are different things, albeit they are contained in the same First Amendment.

Most places where corporations (which are artificial legal mechanisms intended to promote risk-taking in commerce) have been considered to be people (... too, my friends) relate to Property interests, as distinct from Liberty interests. Thus, they can sue in their own names, but not vote -- and no one has seriously suggested applying capital punishment to them, even when it's been richly deserved. Looking at You, Enron.

Religious exercise is a Liberty issue of the kind best reserved for homo sapiens. Here it might also be noted that the corporate titans are sitting this one out. Some eighty amicus briefs have been filed by interested outsiders  none by the big dogs like the US Chamber of Commerce or Business Roundtable, who always bark at the Court. The only two commercial groups to file (both minority chambers of commerce) are opposed. Thus, Business is hardly clamoring to beat-in the vestry doors.

Further, corporatists don't like the implications of such an extension. Setting aside the thorny internal governance problems of deciding which beliefs to advocate, companies like their limited liability more than anything else in their existence. They do not favor "piercing the corporate veil" to make shareholders answer for corporate debts or actions. If that barrier gets breached in the opposite direction by the Hobby horses, it becomes necessarily weaker on the in-bound side.

Finally, and most pragmatically, I just think that when you form a for-profit company, you make some choices. You agree to get a license, comply with various laws, be taxed a certain way, and enjoy the many benefits of the corporate form. You give up the right to defraud your shareholders, bribe foreign officials and, I say, impose your religion on your employees. "It's just business." I predict, optimist that I am, that the Hobbyists lose here, and we all go home.

But let's say, just for argument that I'm wrong about that (it has happened). If the Supremes reach the question of what RFRA compels, then it's a very close question about who wins this case.

On the one hand, we are dealing with a Court that still includes several of the Justices who caused the passage of the RFRA because they had decided in a recent prior case that the Free Exercise did Not require government to demonstrate a compelling state interest before imposing a general obligation on a religious group. The "compelling state interest" that these Supremes would require might not have to be terribly, well, compelling.

The governmental interests in promoting contraception and family-planning generally are reasonably strong, as well, based on numerous realities that I can deal with in the comments if there's interest or dispute. It's also true that the burden and expense of an exemption would fall mostly on one sex, a fact that might not sit well with the Court. There's even an argument that exemption might violate the Establishment clause, by in-effect favoring some religions over others.

But I'm not sure any of this gets the government over the twin hurdles of truly Compelling interest as required in other settings, and Least invasive alternative available to accomplish the government's goals. The very best arguments to defeat the Hobbyists rest in the 'no extension to corporations' realm (albeit sole proprietorships, partnerships and the like would remain an open question, but all businesses of any size operate in one of the corporate forms).

And that's important, because what are the implications of a broad corporate right to religious exemption? Without wishing to scare the children and pets, they are potentially serious, and not-unlike the pre-empted Arizona bill dust-up. That proposed law was intended, after all, to codify the equivalent of a favorable Court outcome for Hobby Lobby.

Three species of impacts might be noted: on similar benefits issues and on other employee matters internally; and externally -- commercially in its business. In the past, court cases have dealt with individual religious objections to medical matters like blood transfusions, infertility treatment, stem cell transplants and mental health counseling. Presumably, these procedures could also be subject to the owners' health-care benefits-inclusion preferences, and any resulting restrictions would be spread, and their costs transferred, to large numbers of employees. Other, non-health-related benefits might not be immune, as well.

In the general employee realm, emboldened employer involvement/intrusion in employee lives would be likely. Religious freedom would butt up against other areas of law, like anti-discrimination (just exactly where IS a 'woman's place?') and the burgeoning field of off-hours privacy law (drinking? dating? dancing? drag-racing?).

And commercially, we'd be looking at untangling a thicket of questions regarding standards that might be imposed on one's customers and suppliers, depending on where in the country the business operates. At minimum, it's that kind of turmoil this case invites. Perhaps that provides the most compelling reason not to 'go there.'

Church/state conflicts are as old as the coexistence of these two governing institutions. The nation was founded on an ideal of maintaining maximum practical separation between them. Hobby Lobby would enmesh them in ways that appear to generate more heat than light. Better advice is contained in the words of a wise man who once famously said: "render unto Caesar that which is Caesar's; and unto God the things that are God's."

Posted by American,
a resident of Danville,
on Mar 3, 2014 at 12:59 pm

Tom: While I do not necessarily disagree with your thoughts and analysis on this particular subject, I do think you sort of gloss over the significant of the first amendment. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Hence, in layman terms, no law shall establish(or favor) one religion over another, or prohibit the free exercise of one's religion.

To some religions, the right to life, is a sacred and fundamental part of their religious tenets, and thus the government forcing someone to spend their money in buying insurance that would pay for abortions, could possibly be interpreted as prohibiting the exercise of their religion. Once again, I do not necessarily agree with this argument, but I think when it comes to a possible violation of the First Amendment, government better have an extremely strong compelling reason for violating something that the framers of our Constitution thought was important enough to denote as the very first thing mentioned in the very first Amendment.

Whether you like it or not, our currency(that government wants to take from us for Obamacare and other taxes) specifically notes on it, "In God We Trust", and each session of the U.S. Supreme Court begins with a prayer.

It is very politically correct, especially in the liberal Bay Area, to be anti-religion, and gloss over constitutionally protected religious freedoms, but when you start playing fast and loose with the Constitution, you start to go down a slippery slope.

I just hope that when issues, such as these, are debated, that people on all sides, read the actual Constitution, and fully appreciate the constitutional protections of the free exercise of religion, before reaching their decisions.

By the way, God bless Josh Reddick, how about those catches in Arizona!!

Hi American: In Josh We Trust -- I only wish the umpires in Detroit had felt that way last autumn.

At least one Supreme Court Justice agreed with your take on the First Amendment, and took it a step further -- Hugo Black essentially said "No means no." He was a First Amendment absolutist, and those cases were pretty easy for him; he was a reliable vote for the individual.

Most other Justices have taken a more qualified approach -- even to the regulation of political speech, at least as to time, place and manner (e.g., no sound trucks blaring campaign slogans in your neighborhood at 3 AM). I wrote about the progression of cases on Free Exercise briefly in Part 1, but basically, for many years religion didn't get much respect when it came to requests for exemptions from general-purpose laws (otherwise, The Church of No Taxation would have many devout adherents).

Starting in the 1940s, the Justices began requiring a "compelling state interest" in such circumstances, much akin to the RFRA test (paying taxes still meets that test, BTW). The test weakened, however, over a succession of cases, and in 1990, Justice Scalia wrote the Smith v. Employment Department opinion, which re-established the earlier low standard of justification that the government would have to meet. It remains good First Amendment law, but RFRA, passed soon thereafter, expressed a preference for the higher standard in all actions taken by the federal government.

I take it, Mr. Justice American, that you might decide to grant the Hobby Lobby exemption; I would not. That's why there is an odd-number-of-Justices-greater-than-one on the Court. And why those lifetime appointments are such a rich source of Presidential legacy.

Posted by Ann Bochniwski,
a resident of another community,
on Mar 3, 2014 at 2:14 pm

Tom, as you know I'm not a lawyer, so my reasoning might be faulty. It seems to me that health insurance is an employee benefit and part of a compensation package. An employer can't tell employees how to spend their pay checks, so insurance should not be at the whim of the employer either.

I am Irish Catholic, but am pro- choice as I don't think a man should be dictating to a woman what she can or can't do with her body. However, I also take a pretty strict view of first Amendment, and don't like government taking actions that may violate a person's constitutional right to free expression of their religion. So, a woman should have absolute right to control her body, and have an abortion if she desires. But forcing others to pay for her abortion by making them buy insurance that covers abortions, if it violates their religious views, in my humble opinion, is wrong as a first amendment violation.

I am not going be able to make it to spring training this year, but can't wait to see my A's win their third straight league title in Oaktown!! Let's Go Oakland!!

Posted by Tom,
a resident of another community,
on Mar 4, 2014 at 12:02 pm

Hi all, stumbled here while preparing a short course on Corporate Personhood.

American: the problem with calling this a strict 1st Amendment issue is that it's not obvious that the employer paying for the insurance amounts to the employer 'paying for the abortion'. The employer gives me my paycheck, and I could use that money to pay for an abortion as well. But we don't consider the money put into my bank account, that I later choose to use on an abortion, to be the employer 'paying for' my abortion. The employer puts money into a fund (my bank account, or my insurance policy) and from there I choose how to spend it. Should an employer be allowed to only give me my regular paycheck if I agree to not spend any of it on an abortion? :)

There's also an interesting note: the sort of rulings that have happened under the RFRA have almost all been about *positive* practices: the Fed Govt can't stop me from *doing* X, Y, and Z. But what Hobby Lobby and the AZ Leg are talking about is a *not doing* of something. And that's not as clearly protected by the 1st Amendment. The Fed. Govt. can't prevent me from actively taking an action that my religion requires. But much less is said, or agreed on, regarding whether I have the same rights to call a refraining from action a religious freedom.

I'm not saying they shouldn't be treated the same, but the "I have the right to NOT do X" argument is much less prevalent, and less successful, than the "I have a right to DO X" argument. Particularly, historically, when the "not do X" includes depriving someone of something a law says they should get.

Posted by Northern Lights,
a resident of another community,
on Mar 4, 2014 at 11:26 pm

Tom, Brutus claimed he was rendering unto Caesar what was properly Caesar's, and I certainly wouldn't want to suggest a comparison between feudalism and the Obama Administration's Affordable Health Care Act if I were you. But otherwise, I agree with your primary thesis. Hobby Lobby almost certainly will lose. It is sometime difficult to predict the best way to resolve cases like these, but in the post-Citizens United world, it would be both interesting and helpful for the Court to find that your ordinary run-of-the-mill for-profit corporation does not have religious interests to protect in the freedom/establishment of religion clause. The would invite an interesting legal debate on what values can a corporation hold (such as the primacy of making profit and the importance of efficiency and economies of scale and scope) and how clearly corporations maintain and make choices based on their culture and values. It will be an interesting discussion.

Posted by Marion,
a resident of Highland Oaks,
on Mar 5, 2014 at 10:16 pm

It might help to consider that this matter is less about religious freedom and more about a lingering paternalism that refuses to relinquish the idea that women's bodies are to be controlled by men. In this case, the Hobby Lobby coalition wants to limit women's right to control their own bodies, before as well as after "moment of conception." With this last ditch effort to control women through ruse of religion, Hobby Lobby coalition tries to extend its sexual taboos against increasingly empowered women.

So, upshot: Is this case about religious freedom? Not really. Is it about limiting the sexual freedom of women? Yes, it sure is. (See Rush Limbaugh's recent verbal hemorrhaging over Sandra Fluke's sexual practices.)

By the same token, was ACA written up as a response to women's assertions of their right to sexual freedom? You bet it was. And does Hobby Lobby support that right? Of course not. Yet another knee-jerk effort to stanch the movement toward long overdue women's rights.

Thanks, Marion. It is certainly true that the definition of "religion" in American law is exceptionally broad -- which makes it convenient for the paternalists to pile onto that bandwagon. I don't know that anyone is disputing the specific devotions of the HobbyLobbyists, but there are plenty of less-devout opportunists who may be born-again if the case goes 'their' way. I do see this as part of a rear-guard action in the Culture Wars, so I basically agree with you.

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